(dissenting) — Racial bigotry, prejudice and intolerance will never be ended by exalting the political rights of one group or class over those of another. The circle of inequality cannot be broken by shifting the inequities from one man to his neighbor. To aggrandize the first will, to the extent of the aggrandizement, diminish the latter. There is no remedy at law except to abolish all class distinctions heretofore existing in law. For that reason, the constitutions are, and ever ought to be, color blind. Now the court says it would hold the constitutions color conscious that they may stay color blind. I do not see how they can be both color blind and color conscious at the same time toward the same persons and on the same issues, so I dissent.
The court, as I see it, upholds palpably discriminatory law school admission practices of the state university mainly because they were initiated for the laudable purpose of enhancing the opportunities of members of what are described as “ethnic minorities.” It thus suggests a new rule of constitutional interpretation to be applied here that, if the administrative intentions are adequately noble in purpose, Mr. DeFunis may be deprived of equal protection of the laws and certain special immunities and privileges may be granted to others which, on the same terms, are denied to him. One should keep in mind the wisdom of the old saying that the road to perdition is paved with good intentions.
The court holds that the university law school may give preferential treatment to persons who come from groups “which have been historically suppressed by encouraging their enrollment within the various programs offered at the *46University.” But what seems to me to be a flagrant departure from the constitutions, ignored by the court, is epitomized in the statement that the admission policy was adopted by the law school “to increase participation within the legal profession by persons from racial and ethnic groups which have been historically denied access to the profession and which, consequently, are grossly underrepresented within the legal system.” This assertion confesses to prior racial discrimination which I doubt existed, and fails to recognize, in a case where the demand for seats in the law school is much greater than the school’s capacity, that the increased minority participation assured by such admission procedures inevitably produces a correlative denial of access to nonminority applicants.
Thus, in keeping with what may be described as the expanding horizons of latter-day constitutional principles in perpetual processes of invention and assertion, the court discovers in an administrative agency of the state the power to determine, first, who, among the applicants, shall be classified as Black Americans, Chicano Americans, American Indians and Philippine Americans and, then, a concomitant power to exclude all other ethnic minorities, including Asian Americans, from the preferred classification. It lets the agency grant preferences — or as they more accurately should be described, indulgences — accordingly. For reasons not clear in the record, Asian Americans and all others of different ethnic derivation than those enumerated are not included among those to receive such preferences or indulgences.
Parenthetically, the record reveals, to me at least, another invidious form of discrimination — that against the residents of this state. According to some members of the admissions committee, the school has a goal to become a “national” law school, that is, one of nationally recognized prestige and purpose. In pursuance of this goal, the committee declines to discriminate against residents of other states and foreign countries. It is something of a mystery, however, how that goal can be achieved by the substantial *47lowering of academic standards for admission. In trying to create a national law school by means of procedures now in vogue, the law school must inevitably indulge in what might be deemed an inverse form of discrimination against bona fide residents of the state because the policies of admission operate to deny to residents of the state those preferences which are due them. The admissions committee gives little or no heed to whether the applicant comes from within the state or out of the state and declines to observe an overt policy of affording preference to residents of the state of Washington as required by law and public policy. Although not so intended, the failure to honor that peculiar but logical preference which the university should accord to the people who live here ipso facto generates an inverse discrimination against them.
When one considers the numerical ratio of nonresidents to state residents in a nation as large as ours, this practice, if maintained over a period of years, while conceivably operating to transform the law school into a national law school, may, except for purposes of providing the tax money to keep it operating, keep it from functioning as a state university. Nowhere, constitutional principles aside, can I find that the legislature has ever conferred such sweeping powers upon the administration or faculty of the university. Thus, in admitting out-of-state students with low academic credentials at the expense of residents of this state with high academic records, the law school not only has violated the constitutions but at the same time has both discriminated against the youth of this state and repudiated a fundamental idea that a great university, if it stands for anything at all, must stand for academic excellence.
Mr. DeFunis supported his application for admission with every conceivable evidence of competence except possibly an astrological horoscope. The record shows that his parents had been residents of and taxpayers to the state for about 50 years, and that he had lived here all of his life, graduating from Franklin High School in Seattle. His ad*48mission files showed, and the court found as a specific fact, that he had been graduated from the University of Washington with an overall grade average of 3.62 out of a possible 4, and a junior-senior grade point average as calculated by the law school of 3.71, which would be 3.8 if 9 hours of straight A (4) in Latin earned in the first quarter of his junior year during the summer quarter, 1968, were included. Although a straight A in Latin may speak for little in the current techniques for evaluating law school applicants, one can be sure that John Marshall, Oliver Wendell Holmes, Joseph Story, Benjamin N. Cardozo and John Harlan, along with Thomas Jefferson, Abraham Lincoln and Franklin Delano Roosevelt, would have found it impressive.
Mr. DeFunis was refused enrollment not once but twice by the school of law. He first applied for and was denied admission by the entering law class in the fall of 1970, but was informed that he had a better chance of being admitted to the beginning law class the next year, in the fall of 1971. During that interval, while waiting for the latter class, he worked nearly 40 hours per week for the Seattle Park Department and at the same time earned 21 hours of straight A in graduate school, receiving also 3 hours of incomplete. His LSAT, or law school aptitude test scores, for tests taken on three separate occasions, were 512 'and 566 in 1969, and a quite remarkable 668 in December, 1970. The 668 score placed in the top 7 percent of all law school applicants nationally computed during a 3-year test period. Even if the scores were averaged, as the testing service suggests should be done, that average of 582, along with his grade average, placed him in the category of those marked for admission. His predicted first-year average (PFYA) — calculated by formula applied to his junior-senior grade point average of 3.71 and his averaged three LSAT scores along with his average writing test score of 61 — gave him a predicted score of 76.23. By all standards and requirements of the admission policies openly announced by the law school, he should have been admitted.
*49The way things worked out, however, the law school failed to apply even its own vague, loose and whimsical admission standards. Of the approximately 155 enrolled in the entering law class in the fall of 1971, 29 had higher PFYAs than Mr. DeFunis, but there were 74, including minority students, with lower PFYAs. Excluding Asians, 18 of the 36 minority students with lower PFYAs than Mr. DeFunis actually did enroll; the other 18 notified of their admission, also with lower PFYAs than plaintiff, for reasons not discernible in the record did not enroll.
Altogether, 275 applicants were given formal notice of acceptance into the class entering in the fall of 1971 and another 55 were put on a waiting list making a total of 330 students who were formally accepted or notified that they probably would be. The reason for giving notice of acceptance to 275 for a class which was limited to 155 is that usually many applicants apply to several schools; others, for one reason or another, are unable or disinclined to enroll. Plaintiff Marc DeFunis, Jr., was neither among the 275 notified of acceptance nor among those added to the waiting list of 55.
The discriminatory action in refusing his admission becomes even more glaring when an overall view is taken of the admission practices. Of the 275 students who were explicitly told they had been accepted to the entering 1971 fall class, 180 had lower junior-senior grade point averages than plaintiff DeFunis and only 95 had higher. Of 330 accepted for admission, which included those notified of admission and the additional 55 placed on a waiting list, 224 had lower junior-senior grade point averages and only 106 had a better average — and this without allowing for the 9 hours of A in Latin he had received in his junior year. Among the 275 admitted, 44 were minority, i.e., Afro-American, Philippine American, Chicano or American Indian, and of these 44 minority admitted, only 6 had higher academic qualifications than Mr. DeFunis and 38 had lower qualifications. Among these latter admitted students with *50lower qualifications were some whose college grades and aptitude scores were so low that, had they not been minority students, their applications would have been summarily denied.
Although preference was shown students from the so-called minority groups, no preference whatever was shown on the basis of Washington residency. Of the 275 admitted (excluding the waiting list of 55), 127 were nonresidents— a curious departure from the obvious public policy for which the university was established and has been primarily maintained for over a century, the education of the people of this state. To ignore bona fide state residence appears to be incompatible with the declared policy expressed in Const, art. 9, § 1, that it is the paramount duty of the state to educate children within its borders, as implemented by early legislation (preceding RCW 28B.20.020), that, with limited exceptions, tuition at the university shall be free to all bona fide residents of the state. (Formerly RCW 28.77.020.) Although now by statute the university must charge tuition to state residents (RCW 28B.15.200), this does not alter the obvious long-existing policy of affording preference to residents of this state. This existing statute recognizes this preference in the assessment of higher tuition charges to nonresidents than to residents. Although the statutes authorize certain discretionary powers in the Board of Regents to admit nonresidents and require disparate tuition fees from both state residents and out-of-state residents, the traditional policy of preference to bona fide residents for admission to the state’s institutions of higher learning remains intact. The one idea clearly emerging from the constitution and statutes affecting higher education in the state’s own colleges is that the people of the territory and state founded and have since maintained and supported a state university primarily for the benefit of those who live here.
Mr. DeFunis’ case presents the curious situation of a state university school of law founded, maintained and operated by the people of this state and deriving most of its *51subsistence from their taxes and good will, designed to enable them and their children to obtain a professional education which a substantial number of them could not afford were they studying in a private school, inviting the nation at large to compete for seats in the law school, and then not awarding the seats to the winners of the competition. I think it not a narrow provincialism to say that, by and large, the major resources of the state university should be devoted to the purpose for which it was created and has been maintained — service not only to mankind at large but additionally and primarily to the people of the commonwealth who founded and perpetually have supported it. Nonresident students should, of course, be admitted, but their numbers ought to be limited and their admission selective and probably based on reciprocal policies of the other states and foreign countries. Admission of out-of-state residents should be in consonance with the principle that a state university exists primarily for the people of the state and secondarily for residents of other states and foreign countries.
The law faculty was, as the court observes, motivated by a laudable purpose — to increase the number of minority students studying law and with the avowed purpose of equalizing opportunities among applicants who come from the lower income and economic groups with those who come from the higher. This policy of ethnic minority selection apparently was not to apply to faculty positions for the record does not show that any qualified nonminority applicant for the teaching staff was refused nor any faculty member ousted to make room for law teachers with questionable credentials from a minority ethnic group.
In deciding which particular groups should be classified as ethnic minorities, the committee on admissions first made an assumption supported by no evidence whatever, i.e., that all of the accepted minority students except Asian Americans were of a lower economic status than Mr. De-Funis. No comparative investigation or study as to the fi*52nancial condition or economic background was made to establish the relative economic and cultural condition of the students applying. It was thus categorically assumed that the ethnic minority applicants were, to use the descriptive term current in academic circles, culturally deprived— meaning, one must suppose, that the environmental factors surrounding a minority student and tending to affect his academic achievements were of a lower order than those surrounding white or majority students. This sweeping and unsupported assumption, derived from no real evidence whatever, that all of the admitted minority students were both poor and culturally deprived, supplied the modus vi-vendi for the scheme of preferences. It ignored the correlative assumption which inevitably had to be made that neither Mr. DeFunis nor any of the nonminority applicants had been equally culturally or economically deprived.
Aside from the questions of equal protection and the granting of special privileges and immunities, there arises from this record a compelling but subsidiary question as to how such bizarre results came about. How, under 'any rational admissions policy, could an outstanding student, one of superb academic achievement, be denied admission to his state university law school while others, some of them nonresidents and of mediocre academic standing, were admitted? Did the legislative or the executive branches of government ever delegate authority to handle admission of a state university law school in this fashion? Following is a brief description of the admission procedures as shown by this record.
The admissions practices which operated to deny Mr. DeFunis’ application were developed by the law faculty under the claimed authority of the Board of Regents and the president of the university. An admissions and readmis-sions committee consisting of five members of the faculty and, for reasons not made clear in the record, two law students, had been established by the dean and a-majority of the law faculty to decide who would be admitted. Although each of the two law student members possessed full *53voting powers and served with exactly the same authority as each of the five faculty members, the record is devoid of any standards applied as basis for their appointment to the committee on admissions.
For example, Tama Zom, one of the student members who testified, said that she had become a member during her first year in law school. Although actually a resident of Washington, D.C., she had been accorded what she described as resident status for tuition purposes on entering law school. She had not been selected for appointment to the committee on admissions or readmissions by the faculty, the regents or the president of the university, but, rather, had been delegated to it by an entity called the Student Bar Association. Her appointment to the committee on admissions and readmissions was based on little more than her application to that organization. In this fashion, the Student Bar Association appointed the two student members to the committee largely upon their request with little or no thought to their qualifications and less as to their purpose, and with no indication in this record that the Student Bar Association itself possessed any particular talents or qualifications to pass in turn upon the qualifications of its incoming fellow students.
Mrs. Zom said that the admission committee members had no personal acquaintance with the applicants; that her knowledge of the applicants’ aptitudes and qualifications had to be derived exclusively from their application files and the decisions reached from a “policy that intends to encourage minority students to come to law school and practice law in the community.” Minority students could readily be identified from the files of the applicants but one could not tell whether they were economically underprivileged or, as the term is used, culturally deprived. She did acknowledge, however, that Asian Americans, although a minority, were given no preferential treatment.
In devising the modus operandi for carrying out the policy of preferential treatment, little thought was given to *54the possibility that, in 'addition to being suspect constitutionally, the practice might well be ultra vires for it placed a controlling power over the careers and even the lives of many potential students in the hands of their fellow students.
The two law student members of the committee each exercised an initial and virtually controlling vote in the screening of about 60 or 70 applicants. Each member of the committee, including student members, was given approximately 70 files upon which to make recommendation for admission or rejection, with instructions that only about 10 were to be approved for admission and the remaining 60 rejected. Thus, of over 1,500 files to be examined, 490 files were distributed among the committee members. Each member would arrive at what was determined to be a cutoff point below which the files would be summarily rejected, and in the usual course of events those files received no further consideration.
Of the approximately 70 files given to each member, both student and faculty accordingly would return to the whole committee a recommendation of 10 for admission. Since the 70 files per committee member represented only 490 of some 1,500 plus, Mrs. Zorn testified she assumed that several hundred applicants had been summarily rejected before distribution of the 70 files to each member, and quite possibly some had been summarily admitted. In general, it is a fair summary of the record, I think, that of the approximately 70 files distributed to each committee member, an applicant neither included in the 10 recommended nor in some 20 more carried as secondary possibilities had little or no chance for admission.
Thus, some 40 student applicants were categorically rejected, another 20 given only secondary or uncertain chances, and 10 applicants put in a categorically positive position for admission upon nothing more than the recommendation of a first- or second-year law student. Mrs. Zorn testified that of the 40 files marked by her for rejection, she *55had. no subsequent knowledge or further contact. As far as she knew, they were consigned thenceforth to bureaucratic oblivion.
After reviewing Mr. DeFunis’ file prior to trial, Mrs. Zorn said that it indicated nothing derogatory, but, as she expressed it, showed something perhaps negative. This vague or perhaps negative feeling she derived, as she testified, from the following comment contained in his file, appearing in one of the recommendations supplied on Mr. DeFunis’ behalf:
“This guy is a person I would refer to as the planner. He sets his goal and steadily works toward it, come Hell or high water. I admire him in his persistence, but there seems to be the slight tendency of not caring upon whom he might step in the process. I have known him for four years and as an adviser for three quarters, and as a student in one of my classes. His major is in political science but with strong — ”. Well, I can’t read that next word, “in history and sociology. His hobbies are sports, classical music collection and classical guitar. He has helped finance his education by sales work, book store and Seattle Park Department laborer. His activities are campers — ” The Court: Campus. Mr. Diamond: “ — on campus have been largely political oriented, mobile, model congress and mock political convention. He wishes to practice law. I recommend.”
The negative qualities of these file comments are, indeed, hard to identify, but for some reason or other Mrs. Zorn thought them to be unfavorable and said that they contributed to warranting a rejection. She conceded, however, that Mr. DeFunis’ LSAT score was higher than the scores of many she recommended for acceptance.
There is also a curious aura of civil, political or community “activism,” as it is sometimes called, surrounding the recommendations for admission or rejection. One student applicant recommended by Mrs. Zorn had an LSAT of 562, substantially lower than the average of Mr. DeFunis, but was recommended for the waiting list because of being very active on campus and in his community. The activity which impressed her the most was that he was a founding *56member of Isla Vista Branch of the American Civil Liberties Union and president of its student chapter at the University of California, Santa Barbara. He had participated in the John Tunney for Senate campaign in California and in the operation of a student owned and operated radio station in Santa Barbara. Also, the applicant had been a campus news reporter and a member of several other campus organizations. Mrs. Zorn had concluded that these activities, despite the low LSAT, established sound basis for admission to the law school. She recommended, however, against the admission of another student with a 3.9 junior-senior grade average because she did not think that his area of study, the field of finance, adequately significant. Finance, as she put it, was a program without rigor. She was apparently unaware of the rigorous nature of courses in accountancy, statistics, economics and banking as taught at the University of Washington.
Another'student member of the admissions committee, Mr. Hayes, testified he had been put on the committee during his first year of law school but left it because of poor grades. As he explained his departure, “I just barely made it to the second year.” Like Mrs. Zorn, Mr. Hayes was given a stack of files to review, but, because of his part-time work, he reviewed substantially fewer files than did the other members of the committee. He said he had had no special training with respect to judging or passing upon applicants to the university law school and had been put on the committee simply by adding his name to a sign-up sheet from which the Student Bar Association had then picked him. Testifying concerning one applicant whose junior-senior grade point average was only 2.89, a comparatively low grade, he acknowledged, that applicant’s file cover contained the statement entered by a committee member, “We seem to have bungled this one pretty conclusively. He’s got us.” The committee, having mistakenly accepted that applicant, he said, did not rectify the error and the particular applicant remained admitted.
*57The committee, he said, was trying to achieve what he described as a class balance based on an estimated potential for getting through school. He said most of the files given him for review were those of minority students. Another applicant he recommended for admission had a junior-senior grade point average of only 2.63 with the notation, “Excellent recommendations, sound record. Divorced with five kids. Could make it if her personal situation could be worked out, lightened load possibility? Admit.”
Another student member, Mrs. Rochelle Kleinberg, was put on the admissions committee during her second year of law school. She was appointed, she said, by the Student Bar Association as was Mrs. Zorn simply by putting her name on a posted sign-up sheet. When asked why she had sought the appointment, she said that she thought it had an important role in the law school and wished to participate. As it turned out, the role was in fact extremely important for the future of many highly qualified student applicants.
Mrs. Kleinberg, as did most of the others, initially received about 70 files for review and eliminated 50 or 60 of them below what she deemed an appropriate cutoff point. Thus, the rejected applicants had no way of knowing that their opportunities for admission had been summarily curtailed by the simple act of rejection done by a law student engaged in the initial review of some 70 files.
A random examination of the records of various students accepted by the law school in the entering classes for which Mr. DeFunis had applied shows extraordinary and inexplicable variations in their qualifications. One admitted applicant showed an almost vertical academic climb. He had a junior-senior grade point average of 3.64, but an overall grade point average of 2.85. The admission committee notes in his file read as follows: “Overall GPA 2.85. strange recommend, ‘arrogant, conceited’ but apparently bright . . . [not readable] Take a chance on his screwy personality & admit.” His PFYA was 78.35 with a writing score of 71. One cannot discern from the files whether a height*58ened community or campus activity, or whatever, constituted the determining factor for admission. One young woman with a junior-senior GPA of 3, an LSAT of 702, and a writing score of 66, was admitted by a letter from the dean dated September 14, 1971, with no comment, remark or recommendation whatever from the admissions council.
An applicant with a junior-senior GPA of 2.37 and an LSAT score of 475, was admitted by letter from the associate dean dated July 29, 1971, despite the remarks of the admissions committee that he be rejected. Another applicant with a junior-senior GPA of 3.32, an LSAT of 759, and a writing score of 60 was admitted by letter of July 23, 1971, from the associate dean of the law school despite the admissions committee’s remarks set forth in his file that his “recommendations are equivocal and his academic career unimpressive.” The admissions council deemed unimpressive a 3.32 junior-senior average earned in chemistry, physics, analytical geometry, calculus and general physics laboratory. This particular applicant with the so-called unimpressive academic record had also earned 6 hours of A in advanced calculus, 6 hours of A in mechanics and an A in introduction to digital computers.
Another young woman, earlier alluded to, was admitted to the law school with a junior-senior grade point average of 2.63, an LSAT of 481, and a writing score of 55. The file shows that she was 35 years of age at the time of admission and would thus be 38 upon graduation, if indeed able to complete the program on schedule. The remarks entered by the admissions council in her file note that she was “Divorced with five kids. Could make it if her personal situation could be worked out.” It added, “Excellent recommendations; sound record,” and upon these conclusions recommended admission to the law school.
By letter of March 2, 1971, an applicant with a junior-senior grade point average of 2.89, an LSAT of 663 and a writing score of 58 was accepted. Other than pointing out that the applicant was a member of a minority, the admissions council was noncommittal.
*59Another applicant admitted with a junior-senior grade point average of 3.56 had an LSAT of 625. Despite these high qualifications, the determining factor for admission here as revealed in the file is the remark on the admissions council list: “Enthusiastic recommendation. Abundant community action projects.”
Another applicant earned a remarkably high junior-senior GPA of 3.90 and scored 599 in the LSAT, but achieved a writing score of only 46. He was notified of his acceptance by letter September 14, 1971, by the dean of the law school. There is apparently very slight correlation in many cases among the GPA, the LSAT, and the writing scores.
An applicant with a GPA of 3.55 was notified of his acceptance by the law school by letter of May 21, 1971, from the associate dean after achieving an LSAT of 625 and a writing score of 61. For some reason or other, the admissions committee recommended against outright admission but that he be placed on the waiting list. Despite this, however, the applicant was categorically admitted.
Of the approximately 150 students actually enrolled in the class for which petitioner DeFunis made his application, only some 42 admission files were placed in evidence. But an inspection of these files, in my judgment, fails to show any consistent policy on admissions at which a prelaw student could aim his career. If he is intelligent, works hard, and achieves high grades, his place in the law school class may be preempted by someone with lesser grades but who is engaged in what is described as “community activities,” or is otherwise described as a student activist. Or, if he is engaged in community activities and still attains high grades through diligence and intelligence and long hours at the books, his position may be taken in the entering class by one who has neither engaged in “community activity” nor achieved high grades but, nevertheless, has made a high LSAT score. Or, even if he studied hard, is intelligent, and placed high in grades, LSAT and PFYA, and engaged in what are called community activities, his place might *60still be awarded to a minority student who has done none of these. All of these inequities are, I fear, bound to foster a spirit of anti-intellectualism in the heart of what should be an intellectual center.
The discriminatory character of the admissions policy is, I think, well epitomized by the trial court in its oral decision:
The applications of the black students were separated from all others and assigned for review to a black student and a professor who had worked closely with the CLEO Program.
Some minority students were admitted whose college grades and aptitude test scores were so low that had they been whites their applications would have been summarily denied. Excluding the Asians, only one minority student out of 31 admitted among the applicants had a predicted first year average above the plaintiff’s.
Since no more than 150 applicants were to be admitted the admission of less qualified resulted in a denial of places to those otherwise qualified.
This method of selection operated to deprive Mr. De-Funis of his position in the entering law classes both in 1970 and again in 1971. Not being a member of a preferred ethnic minority, he found his place taken by others who not only possessed far lower credentials and qualifications but among whom were some who on the face of their records were unqualified. He was the victim of what in current parlance has come to be described as “affirmative action,” which includes preferential treatment for the sake of creating a more equitable racial balance — a process which the court now finds constitutional.
If this be constitutional, then, of course, the constitutions are not color blind; one racial group may be given political or economic preferment over another solely because of race or ethnic origin. Yet, this was the very thing that the Fourteenth Amendment was designed to prevent. All races, and all individuals, are entitled to equal opportunity to enter the law school. To admit some solely because of race or ethnic origin is to deny others that privilege solely for *61the same reasons, which in law amounts to a denial of equal protection to the one while granting special privileges and immunities to the other.
The United States District Court, Northern District of California, recently stated what I perceive to be the controlling principle here when it said in its findings of fact in Anderson v. San Francisco Unified School Dist., 357 F. Supp. 248 (N.D. Cal. 1972):
No one race or ethnic group should ever be accorded preferential treatment over another. No race or ethnic group should ever be granted privileges or prerogatives not given to every other race. There is no place for race or ethnic groupings in America. Only in individual accomplishment can equality be achieved.
With the possible exception of administering justice, I accept the dicta in Brown v. Board of Educ., 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686, 38 A.L.R.2d 1180 (1954), that education is probably the most important function of state and local government. It should not be forgotten, however, that in striking down decisively the separate but equal concept of segregated schools, the rationale of that decision rested on equality of opportunity and the premise that segregation based on race or color amounted categorically to an unconstitutional denial of that equality. In speaking of equality of educational opportunity, the court there said, “Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” 347 U.S. at 493.
The mainstream of current constitutional law runs forthrightly against the discriminatory practice of preferential treatment based on race, color, or ethnic origin. In McLaughlin v. Florida, 379 U.S. 184, 13 L. Ed. 2d 222, 85 S. Ct. 283 (1964), an adultery statute imposing greater penalties when the participants were of different races was held unconstitutional under the Fourteenth Amendment. Despite the wide legislative judgment to be sustained in determining whether an act is reasonably designed to attack the evil aimed at, any classification based upon race must, *62it was held, be suspect at the outset on the general rule that the constitution and amendments were intended to eliminate all racial discrimination arising from official actions. Bolling v. Sharpe, 347 U.S. 497, 98 L. Ed. 884, 74 S. Ct. 693 (1954).
As pointed out in McLaughlin v. Florida, supra, racial classification has been held invalid in many cases: race was required to be designated in voting and property records (Virginia State Bd. of Elections v. Hamm, 379 U.S. 19, 13 L. Ed. 2d 91, 85 S. Ct. 157 (1964)); designation of race on nomination papers and ballots (Anderson v. Martin, 375 U.S. 399, 11 L. Ed. 2d 430, 84 S. Ct. 454 (1964)); racial segregation in public parks and playgrounds (Watson v. Memphis, 373 U.S. 526, 10 L. Ed. 2d 529, 83 S. Ct. 1314 (1963)); segregation in the public schools (Brown v. Board of Educ., 349 U.S. 294, 99 L. Ed. 1083, 75 S. Ct. 753 and 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686, 38 A.L.R.2d 1180 (1954)); segregation of the races in public transportation (Gayle v. Browder, 352 U.S. 903, 1 L. Ed. 2d 114, 77 S. Ct. 145 (1956)); and as a social practice even without sanction of ordinance or statute in public restaurants (Lombard v. Louisiana, 373 U.S. 267, 10 L. Ed. 2d 338, 83 S. Ct. 1122 (1963)); and in public swimming areas. Baltimore v. Dawson, 350 U.S. 877, 100 L. Ed. 774, 76 S. Ct. 133 (1955). All were held repugnant to the constitution. If the Fourteenth Amendment stands for anything at all, it should be clear from these decisions that it stands for the principle that all discrimination based on race, religion, creed, color or ethnic background by any state, its constitutions, its subdivisions, or its agencies, is prohibited.
The majority concedes and the record is indisputable that petitioner DeFunis was ousted from the list of acceptable students solely because of preference accorded others, and that this preference was granted to many solely because of race and ethnic origin. Even though there are many areas of public endeavor where it would be deemed a valid and constitutional exercise of the police power to provide spe*63cial assistance for those segments of our population described as disadvantaged or poor, or culturally deprived, such special assistance could not constitutionally deprive Mr. DeFunis of a seat in the law school and award it to a member of a group whose existence is defined or controlled by considerations of race or ethnic origin. When the seat in the law school is awarded on the basis of race or ethnic origin, the procedure necessarily falls within the constitutional principles prohibiting racial segregation or preference.
In referring to special aid and assistance, the fact remains that the committee on admissions and readmissions made no investigation whatever as to whether any of the minority students admitted were poorer, more disadvantaged or more culturally deprived than some of the students of higher educational and aptitude qualifications who had been turned down. The committee simply applied a theory and ipso facto assumed that every Black American, Indian American or Chicano, or Philippine American, because of his ethnic origin of necessity had to be more disadvantaged, poorer and more culturally deprived than those of Asian, Caucasian, or other ethnic origin.
The case of Jones v. Alfred H. Mayer Co., 392 U.S. 409, 20 L. Ed. 2d 1189, 88 S. Ct. 2186 (1968), sustaining an act of Congress which prohibited racial discrimination against Blacks in occupying or purchasing federally aided housing, in my view, supports rather than disparages DeFunis’ position and does not, I think, purport to find the constitution color conscious. There the court held that the Congress had constitutional power to prevent the expenditure of public funds for the enhancement of one racial group to the detriment of other racial groups. It held that, where state law affords preference on the basis of race so that it works a detriment to others on the basis of race, the law and regulation pursuant to it are inevitably repugnant to the Fourteenth Amendment.
This means that this court’s decision in State ex rel. Citizens Against Mandatory Bussing v. Brooks, 80 Wn.2d *64121, 492 P.2d 536 (1972), would tend to sustain DeFunis’ position in the present case. There is no more than a coincidental parallel between the Mandatory Bussing case and Mr. DeFunis’ case. There we sustained a modest program of compulsory bussing initiated by the Seattle school district for the stated purpose of assuring higher quality of education for all students of whatever racial, religious or ethnic background. The policy of required bussing has been adopted because the school board was of the opinion that racially segregated schools, even those where the segregation is de facto and not de jure, are inferior to integrated schools, and that a racially segregated student body will receive an education inferior to that of a racially integrated student body. This court held that the school board was acting within its lawful powers in reaching this conclusion and in implementing its views by a program of mandatory bussing. In the Mandatory Bussing case, the Seattle school board did no more than act officially upon conclusions it had the authority to reach, and provide for racially integrated education while curtailing de facto segregation.
There is no genuine parallel between Mr. DeFunis’ case and the case of the children required to ride the busses. There, we were dealing with a procedurally sound administrative determination that every child, under the plan and the constitution, would gain an integrated and thereby superior education at the expense of no other child. Providing one child with a better, i.e., integrated, education did not operate to deprive another of an equal, integrated education. Benefit to one would not be at the expense of another. Putting one child on a bus to ride to school did not operate to take away another’s seat in the classroom. Ordering bussing to eliminate segregated schools was no less compatible with the constitutions than the idea that children needing or requesting specialized training may have to ride busses to special schools because every department and facility of a school system, in the nature of things, cannot be equidistant from all children. In the Mandatory Bussing case, the Seattle school board was attempting to discharge *65its constitutional duty of providing equality of educational opportunity for all children within the district at the expense of no child or children.
Here we have precisely the opposite. Putting some applicants into the classroom deprived a qualified applicant of his seat there. It operated to deprive him thereby of the equal protection of the laws and at the same time granted to others privileges and immunities not available to him on equal terms. Thus, aside from the patently arbitrary and capricious method earlier delineated, by which Mr. De-Funis’ position was given to a less qualified applicant, his ouster fell explicitly within the constitutional principle that education must be provided to all students on equal terms and all public education programs must be conducted without regard to race, color or national origin. Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965).
Are there methods by which a state owned and operated law school may be fairly and constitutionally administered so as to comport with the constitutions? Although the courts have neither the power nor the aptitude 1;o operate a university and should be without the inclination to do so, several possible methods come to mind which prima facie, at least, meet the fairness and equal protection standards of the constitutions. One would be a system of comprehensive competitive examinations in predesignated courses such as English, history, basic science, mathematics, economics and sociology, and with optional courses in other fields selected by the student.
Another method would be to work out a reasonably accurate mathematical correlation between grade values from different colleges or universities in preannounced prelaw courses and to compute those equivalent grades with admission granted the 150 students with the highest grades. This gives every student a fair chance to achieve his ambition.
Another possible solution — in case the faculty believes that high prelaw grades should not be the main criterion— prescribe a sound but not extraordinarily high prelaw *66grade standard and make a random selection by lot and chance of the 275 applicants to be admitted from among those qualifying. And the fairest way of all — but I doubt its efficacy — admit all applicants possessing a minimum prerequisite grade point in prescribed courses, conduct the law classes in the field house or stadium, if necessary, give frequent examinations, and let the better qualified few survive on the basis of their grades in law school. There are, of course, other methods equally fair and impartial which may be readily developed, all of which will meet the constitutional tests of fair and impartial application. But whatever scheme is developed, one thing is certain: Keep it within the principles of the constitutions, no one can be preferred and no one can be disparaged because of race, color, creed, ethnic origin or domestic environment.
If it is the state policy — and I think it should be — to afford special training, guidance and coaching to those students whose domestic environment has deprived them of a fair chance to compete, or to provide financial assistance to students in economic straits, it is within the state’s constitutional powers to do so, but once these students have reached the point of seeking admission to a professional or graduate school, no preference or partiality can or should, under the constitutions, be shown them.
The rationale of Anderson v. San Francisco Unified School Dist., 357 F. Supp. 248 (N.D. Cal. 1972), an opinion dated October 30, 1972, filed in the United States District Court, Northern District of California, I think, expresses the principles which should govern the DeFunis case. That court held unconstitutional a school district’s plan to give preference in employment and promotions to members of ethnic minorities in administrative and supervisory positions, such as principals, assistant principals, deans and heads of departments — a plan designed to increase the numerical representation of ethnic minorities in the administration of the schools. That court, in holding the scheme unconstitutional, said that “The key issue in this case is whether or not a classification which is based on *67race is valid,” and answered it with a statement of principles which ought to control here:
Preferential treatment under the guise of “affirmative action” is the imposition of one form of racial discrimination in place of another. The questions that must be asked in this regard are: must an individual sacrifice his right to be judged on his own merit by accepting discrimination based solely on the color of his skin? How can we achieve the goal of equal opportunity for all if, in the process, we deny equal opportunity to some?
Mr. DeFunis came before the bar of the Superior Court much as did petitioners, parents of schoolchildren, in Brown v. Board of Educ., 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954), asking that he not be denied admission to the university law school because of race or ethnic origin. The trial court properly ordered his admission. So, too, would I, and, therefore, I would affirm.
Hunter, J., concurs with Hale, C.J.